The Hypocritical Liberal Defense of Obama's Recess Appointments

In January 2006, The New York Times published an unsigned editorial attacking "the grandiose vision of executive power" displayed by President George W. Bush, who was then battling Senate Democrats over the fate of several controversial nominees to federal office. "Seizing the opportunity presented by the Congressional holiday break, Mr. Bush announced 17 recess appointments—a constitutional gimmick," announced the Times.

In response to Bush's use of the recess appointment power to bypass the Senate confirmation process, Senate Democrats in late 2007 adopted a new defensive posture. A member would gavel the Senate into pro forma session every few days in order to prevent it from going into recess over the holidays, thereby denying the president the legal ability to make any more recess appointments. It did the trick. As Times reporter Charlie Savage put it, "Senate Democrats repeated the move during breaks for the rest of Mr. Bush's presidency, and Mr. Bush did not try to make any further recess appointments."

Like George W. Bush before him, President Barack Obama has also invoked the recess appointment power under dubious circumstances. But unlike Bush, Obama decided to bulldoze right over the inconvenient fact that the Senate was conducting a pro forma session at the time. On January 4, 2012, Obama made four purported recess appointments when the Senate was not actually in recess, including the addition of three members to the National Labor Relations Board.

That unprecedented unilateral action triggered last Friday's sharp ruling by the U.S. Court of Appeals for the District of Columbia Circuit, which found Obama's three NLRB appointments to be in violation of the Constitution. Obama's tactics, said the D.C. Circuit, "would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."

So how did the editorial board of The New York Times respond to this decision? Given the paper's previous stance in opposition to Bush's recess appointments and "the grandiose vision of executive power" they embodied, you might expect the Gray Lady to cheer a judicial rebuke of Obama's even greater abuse of that same executive power. But you would be wrong.

In an unsigned editorial titled "A Court Upholds Republican Chicanery," the Times blasted the D.C. Circuit for placing limits on Obama's authority. "With no sign that Republicans are willing to let up on their machinations, Mr. Obama was entirely justified in using his executive power to keep federal agencies operating," the editorial declared.

So much for taking a principled stand against executive overreach.

Nor were the editors of the Times the only prominent liberals to change their tune on the desirability of presidential power grabs. At The New Yorker, legal affairs writer Jeffrey Toobin denounced the D.C. Circuit's ruling as "right-wing judicial activism" that serves only to provide "a huge gift to the contemporary Republican Party—especially to Republican senators."

Once upon a time, Toobin expressed more concern about the separation of powers. In his 2007 book The Nine: Inside the Secret World of the Supreme Court, Toobin painted a negative portrait of the "new and expansive view of executive power" championed by the George W. Bush administration and its allies in the conservative legal movement. Now that Obama has the reins, Toobin is apparently less troubled by such matters.

But more to the point, Toobin should know better than to try to pass off the D.C. Circuit's ruling as a "right-wing" act. Toobin is a prominent legal journalist so he is surely aware of the legal challenge launched against President Bush's 2003 recess appointment of William H. Pryor to the 11th Circuit Court of Appeals. When that case reached the federal appellate level, Democratic Sen. Ted Kennedy of Massachusetts filed a friend of the court brief urging the 11th Circuit to adopt almost the exact same limits on the president's recess appointment powers embraced by the D.C. Circuit last Friday. Among the attorneys representing Kennedy in his brief was Harvard law professor Laurence Tribe, a leading liberal academic and sometime mentor to Obama himself.

"The President may not make recess appointments during intra-session Senate breaks," argued Kennedy's brief. The D.C. Circuit reached the same conclusion in the NLRB case. Because Obama's NLRB appointments were made during an intra-session break, rather than during "the recess" that falls between Senate sessions, those appointments are invalid.

If that ruling by the D.C. Circuit was an act of right-wing judicial activism then Sen. Kennedy and Professor Tribe now qualify as leading champions of right-wing judicial activism—a preposterous notion.

In the midst of all this liberal hypocrisy, it's refreshing to find that President Obama has managed to stick to his guns on this issue. In 2005 then-Sen. Obama joined his Democratic colleagues in opposing President Bush's recess appointment of John Bolton as U.N. ambassador. (Bolton's appointment by Bush would also be unconstitutional under the D.C. Circuit's "right-wing" decision.) Yet Obama never objected to Bush's authority to wield that particular power. "The president is entitled to take that action," Obama said, "but I don't think it will serve American foreign policy well."

So Obama is at least being consistent. The same cannot be said for many of his liberal defenders.